MCKAY v BEATTIE [2016] NZHC 1332

MCKAY v BEATTIE [2016] NZHC 1332

Because the defendant was medically shown to be mentally incapacitated and had been validly removed as trustee under s43, service and appointment of a litigation guardian were unnecessary; consequently vesting orders under s52 and s59 were appropriate to vest the defendant's half interest in the land in Suzanne Isobel Gordon as trustee and to vest the defendant's right to transfer 4,499 shares in Beatties Service Station Ltd in Alan Bevan McKay; trustees may recover expenses from trust property.

Citation
[2016] NZHC 1332
Parties
Plaintiff / Trustee: Alan Bevin McKay; Plaintiff / Trustee: Suzanne Isobel Gordon; Defendant / Retired Trustee (incapacitated): Alan Colvin Beattie
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 June 2016
Procedural Posture
Trust Proceeding (vesting Orders Under Trustee Act 1956) / Determined on the Papers (application for Directions and Vesting Orders)
Outcome
Application granted in full; vesting orders made and procedural relief granted
Legal Topics
Vesting Orders Under Trustee Act, Removal of Trustee (s43), Dispensation of Service, Litigation Guardian for Incapacitated Persons, Transfer of Shares/stock, Recovery of Costs From Trust Property
Trusts Property Law Civil Procedure Mental Capacity Law Vesting Orders Under Trustee Act Removal of Trustee (s43) Dispensation of Service Litigation Guardian for Incapacitated Persons +2 more

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Parties

Alan Bevin McKay

Plaintiff / Trustee

Suzanne Isobel Gordon

Plaintiff / Trustee

Alan Colvin Beattie

Defendant / Retired Trustee (incapacitated)

Procedural Posture

Trust Proceeding (vesting Orders Under Trustee Act 1956) / Determined on the Papers (application for Directions and Vesting Orders)

Legal Issues

  1. 1 Whether service on the incapacitated trustee should be dispensed with
  2. 2 Whether a litigation guardian must be appointed for the incapacitated trustee
  3. 3 Whether vesting orders under s52 and s59 of the Trustee Act 1956 should be made to transfer legal title and transfer rights to replacement trustees

Ratio Decidendi

Because the defendant was medically shown to be mentally incapacitated and had been validly removed as trustee under s43, service and appointment of a litigation guardian were unnecessary; consequently vesting orders under s52 and s59 were appropriate to vest the defendant's half interest in the land in Suzanne Isobel Gordon as trustee and to vest the defendant's right to transfer 4,499 shares in Beatties Service Station Ltd in Alan Bevan McKay; trustees may recover expenses from trust property.

Court Disposition

Application granted in full; vesting orders made and procedural relief granted

Orders

  • The defendant need not be served with these proceedings
  • The defendant does not need to be represented by a litigation guardian or other representative